If the cast of judges shall not advance a particular grade level has been set to mandatory, all severely disabled applicants are qualified for the judges office (= 2 Jur State Examination) gem. § 82 sentence 2, 3 SGB IX. be invited to interview. A violation of this requirement is a presumption fact within the meaning of § 22 AGG, namely to the effect that there is discrimination because of disability. Unless the employer / employer to rebut that presumption, he has to the severely disabled applicants according to the severely disabled candidate. § 15 AGG pay a angemessne compensation.
The case:
The applicant is treated as severely disabled people.
Both state law, they were divided by the total rating of "satisfactory" and applied in Baden-Wuerttemberg and Bavaria unsuccessfully as a setting in the higher judicial service Judge. Two countries, they invited the ground not to attend a personal interview, it met with their exam grades not the requirements.
The applicant then claimed compensation according to § 15 para 2 AGG. The employer, it had to invite because of their equality with severely disabled people to interview. Since he had not done it, acc. § 22 AGG at a disadvantage suspect because of the disability. Both claims for payment of compensation amounting to max. three months' salary (€ 12,000 each) were dismissed by the courts ..
The Federal Administrative Court annulled that decision and remanded the proceedings to determine the proper amount of a defendant by the countries to be paid compensation to the VGH VGH Mannheim and Munich.
Reason: :
The applicant has acc. § 15 para 2 AGG entitled to appropriate compensation, because they meet the statutory obligation for public sector employers / employer is required to § 82 sentence 2 and 3 SGB IX is not an interview is invited.
The invitation of disabled applicants for an interview is only gem. § 82 sentence 3 SGB IX expendable when they obviously lack professional competence. But this was not so:
The applicant had not disputed the qualifications for judicial office. On the exam grades were allowed to leave not the defendant employer. For exam grades are relevant only been established when a particular grade level both already before the recruitment process and binding in a job description for the vacant position (n). This was not for judges in Baden-Württemberg Bayern still in the case.
was why it unlawful not to invite the applicant to an interview, so that gem. § 22 AGG, the legal presumption is established that the applicant was discriminated against by denial of the statutory betterment. The defendants have not rebutted in the processes that presumption. Consequently, the applicant has
gem. § 15 para 2 AGG Schmerzensgelanspruch one, regardless of whether the applicant as a result of discrimination in terms of choice because of its notes had not been set.
The cases were referred back to the VGH and VGH Mannheim, Munich, since - logically, from their different point of view - no findings have taken for the level of compensation.
(Federal Administrative Court, decision of 03.03.2011, 5 C 15 and 16.10)
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